FIRST AMENDMENT TO NON-COMPETITION AND MARKETING ASSISTANCE AGREEMENT
THIS FIRST AMENDMENT TO NON-COMPETITION AND MARKETING ASSISTANCE AGREEMENT,
dated as of August 4, 1997, is by and among Good Samaritan Supply Services,
Inc., a South Dakota corporation (the "Company"), The Evangelical Lutheran Good
Samaritan Foundation, a Minnesota non-profit corporation (the "Foundation"), The
Evangelical Lutheran Good Samaritan Society, a North Dakota non-profit
corporation (the "Society"), and American Medserve Corporation, a Delaware
corporation ("AMC").
WHEREAS, the Company, the Foundation, the Society and AMC have entered into
a Non-Competition and Marketing Assistance Agreement, dated as of April 30, 1996
(the "Marketing Assistance Agreement").
WHEREAS, the Company, the Foundation, the Society and AMC wish to amend the
Marketing Assistance Agreement as hereinafter set forth.
NOW THEREFORE, for and in consideration of the foregoing, and other good
and valuable consideration, the Company, the Foundation and AMC agree as
follows:
1. DEFINITIONS. The following terms shall have the respective meanings
hereinafter set forth:
"AMC CHANGE IN CONTROL" shall have the meaning assigned to such term in the
Shareholders Agreement.
"AMC ACQUIRER" shall have the meaning assigned to such term in the
Shareholders Agreement.
"AMC ACQUIRER OPTION" shall have the meaning assigned to such term in the
Shareholders Agreement.
"COMMON SHARES" shall have the meaning assigned to such term in the
Shareholders Agreement.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended.
"FOUNDATION PUT" shall have the meaning assigned to such term in the
Shareholders Agreement.
"SHAREHOLDERS AGREEMENT" shall mean the Shareholders Agreement, dated as of
April 30, 1996, by and among the Foundation, the Company and AMC, as amended by
First Amendment to Shareholders Agreement, dated as of May 15, 1997 and Second
Amendment to Shareholders Agreement, dated as of August 4, 1997.
"TRANSFER" shall have the meaning assigned to such term in the Shareholders
Agreement.
All other capitalized terms not otherwise defined herein shall have the
respective meaning ascribed to such term in the Marketing Assistance Agreement.
2. NON-APPLICABILITY OF SECTION 1(a) OF MARKETING ASSISTANCE AGREEMENT.
The Company, the Foundation, the Society and AMC agree and acknowledge that, at
and upon the occurrence
of an AMC Change in Control, the provisions of Section 1(a) of the Marketing
Assistance Agreement shall not be applicable to the AMC Acquirer and shall
not restrict the lawful business activities of the AMC Acquirer in any
respect.
3. TERMINATION OF SECTION 1(a) OF MARKETING ASSISTANCE AGREEMENT. At and
upon the closing of the Transfer of Common Shares as contemplated by the AMC
Acquirer Option or the Foundation Put, as the case may be, Section 1(a) of the
Marketing Assistance Agreement shall terminate and be of no further force or
effect.
4. NON-APPLICABILITY OF SECTION 1(c) OF THE MARKETING ASSISTANCE
AGREEMENT TO CERTAIN ACTIVITIES OF THE SOCIETY. The parties agree that nothing
contained in the Marketing Assistance Agreement or in this First Amendment
thereto shall prohibit the Society from directly performing any Medicare Part A
or Part B consolidated billing obligations as the Society may be required by law
to perform from time to time.
5. NOTICE UNDER SECTION 3 OF MARKETING ASSISTANCE AGREEMENT. In
accordance with Section 3 of the Marketing Assistance Agreement, the Society
hereby notifies AMC, the Foundation and the Company to take the action required
by the second sentence of such Section 3 with respect to the use by the Company
of the "Good Samaritan" name.
6. MARKETING ASSISTANCE AGREEMENT OTHERWISE TO REMAIN IN FULL FORCE AND
EFFECT. Except and to the extent as hereinabove amended, the terms of the
Marketing Assistance Agreement shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have executed this First Amendment
to Non-Competition and Marketing Assistance Agreement as of the day and year
first written above.
AMERICAN MEDSERVE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: CHIEF EXECUTIVE OFFICER
THE EVANGELICAL LUTHERAN GOOD
SAMARITAN FOUNDATION
By: /s/ Xxxxxxx. X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: CHAIRPERSON
GOOD SAMARITAN SUPPLY SERVICES, INC.
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: CHAIRPERSON
THE EVANGELICAL LUTHERAN GOOD
SAMARITAN SOCIETY
By: /s/ Xxxxxxx. X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: PRESIDENT
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